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2011 DIGILAW 246 (CHH)

JANGAL @ RAMSHARAN v. STATE OF C. G.

2011-07-25

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT As per Hon 'bIe Shri T.P. Sharma, J.- 1. Criminal Appeal No.1 023./2004 filed on behalf of appellants Jangal @ Ramsharan and Rameshwar @ Ramesh against their conviction & sentence dated 18.10.2004 passed by the Sessions Judge, Durg, in Sessions Trial No.2341 2003 and Criminal Revision No.59 112004 filed against the same judgment by victim Kishan Lal against acquitted accused Smt.Chandra Kumari, are being disposed of by this common judgment. 2. Vide aforesaid judgment of conviction & order of sentence dated 18.10.2004 passed by the Sessions Judge, Durg, in Sessions Trial No.234/2003, whereby while acquitting accused Smt. Chandra Kumari and Sanjay Kumar, convicted appellants Jangal @ Ramsharan and Rameshwar @ Ramesh under Sections 302 read with Section 34 & 323 of the I.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.100/-, in default of payment of fine to further undergo R.I. for three months and fine of Rs.200/-, in default of payment of fine to undergo R.I. for three months. The trial Court has also convicted appellant Jangal @ Ramsharan under Section 323 of the I.P.C. and sentenced him to undergo R.I. for three months. 3. Conviction of appellants Jangal @ Ramsharan and Rameshwar @ Ramesh has been challenged in Criminal Appeal No.1 02312004 and acquittal of accused Smt.Chandra Kumari has been challenged in Criminal Revision No.59 1/2004. 4. As per case of the prosecution, on the fateful day of 13.3.2003 at about 4 p.m. wife of Kishanlal (PW-8) namely Smt.Madhvi (PW-2) was bringing water from tanker who was pushed by co-accused Mahesh Guvenile offender) with intent to outrage her modesty. In answer to the act of accused Mahesh Smt. Madhvi (PW-2) abused him, then Mahesh caught hold her hairs and assaulted her by hands and fists, at that time Gendlal came to rescue her and removed Mahesh from the spot. Mahesh went to his house and came along with present appellants and acquitted-accused Kumari @ Chandrakumari, they were holding sword and sticks, they assaulted by sword and stick to Gendlal and caused serious injuries. Kishanlal (PW-8) and Smt. Madhvi (PW-") tried to intervene the quarrel, the appellants also assaulted them. After causing such incident the appellants along with co-accused went to the shop of Kishanlal (PW -8) and caused damage to the property kept in the shop. Kishanlal (PW-8) and Smt. Madhvi (PW-") tried to intervene the quarrel, the appellants also assaulted them. After causing such incident the appellants along with co-accused went to the shop of Kishanlal (PW -8) and caused damage to the property kept in the shop. Gendlal was badly injured, Kishanlal (PW-8) took injured Gendlal to BSP Hosptitai Sector-9 where he lodged dehati nalishi vide Ex.P/I5 and on the basis ofEx.P/15, ELR. Ex.P/19 was recorded. Injured Gendlal was examined by Dr.A.P.Sawant (PW-5) vide Ex.P/8 and found following injuries:- (i) Incised wound of 6 cm. x 2 cm. x bone deep over scalp. (ii) Incised wound of 6 cm. x 2 cm. x bone deep over middle of the head. (iii) Incised wound of 10 cm. x 2 cm. x bone deep over left parietal region. (iv) Incised wound of 6 cm. x 2 cm. x bone deep over occipital region. (v) Incised wound of 10 cm. x 12 cm. x 12 cm. over back of the head. (vi) Incised wound of 14 cm. x 2 cm. x bone deep over right parietal region. (vii) Two incised wounds of 2 cm. x 12 cm. x 12 cm. over left and right index fingers. His condition was poor, he was unconscious and was immediately admitted in surgical ward. Suresh Kumar was also examined by this witness vide Ex.P/9 and found lacerated wound of 2 cm. x 12 cm. x 12 cm. over thumb of right leg. Smt. Madhvi (PW-2) was examined by Dr.A.P.Sawant (PW-5) vide Ex.PI 10 and found lacerated wound of 4 cm. x 12 cm. x 12 cm. over right tibia. Injured Kishanlal was also examined by the same doctor vide EX.P/11 and found two abrasions of 4 cm. x 2 cm. over right index & middle finger and left index & middle finger. During the course of treatment, Gendlal succumbed to the injuries. Death was reported vide Ex.P/31. Merg were recorded vide Exs.PI 31 and P/32. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/13 prepared inquest over the body of deceased Gendlal vide EX.P/14. Dead body of the deceased was sent for autopsy to District Hospital, Durg where Dr.P.Akhtar (PW-11) conducted autopsy vide Ex.P/17 and found following injuries:- (i) Stitched wound over right palm of 12 cm. in length. (ii) Stitched wound over right frontal region of 8 cm. in length. Dead body of the deceased was sent for autopsy to District Hospital, Durg where Dr.P.Akhtar (PW-11) conducted autopsy vide Ex.P/17 and found following injuries:- (i) Stitched wound over right palm of 12 cm. in length. (ii) Stitched wound over right frontal region of 8 cm. in length. (iii) Stitched wound over the head of 7 cm. in length. (iv) Semi-lunar stitched wound of 10 cm. in length over the lead. (v) Stitched wound of 10 cm. in length over left parietal region. (vi) Stitched wound of 7 cm. in length over occipital region. (vii) Stitched wound of 10 cm. in length over left parietal region. (viii) Stitched wound of 7.5 cm. in length over occipital region. (ix) Stitched wound of 10 cm. in length over occipital region. (x) Incised wound 4 cm. x 12 cm. over right index finger. (xi) Haematoma was found inside the brain. (xii) Occipital frontal bone was found fracture and parietal bone and subdural haematoma over surface of frontal lobe and both parietal lobes of size 14" x 12". Cause of death was shock. During the course of investigation, appellant Jangal @ Ramsharan was taken into custody, he made disclosure statement of stick vide EX.P/2 and same was recovered at his instance vide EX.P/5. Bloodstained cloth of appellant Jangal @ Ramsharan was seized vide Ex.P/6. Accused Chandrakumari Bai made disclosure statement of sword vide Ex.P/3 and same was recovered at her instance vide Ex.P/7. Bloodstained clothes of the deceased were seized from Kishanlal vide EX.P/4. Bloodstained & plain soil, broken bangles and bamboo stick were seized from the spot vide Ex.P/12. Sealed clothes of the deceased were seized vide Ex.P/2I. One sword was seized from appellant Rameshwar @ Ramesh Kumar vide Ex.P/22. Seized articles were sent for chemical examination vide Ex.P/23 and presence of blood over cloth and stick recovered from appellant Jangal and sword recovered from accused Chandrakumari vide EX.P/29 was confirmed. 5. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Durg, who in turn, committed the case to the Court of Sessions, Durg. 6. In order to prove the guilty of the accused/appellants, the prosecution has examined as many as sixteen witnesses. 6. In order to prove the guilty of the accused/appellants, the prosecution has examined as many as sixteen witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, learned Sessions Judge while acquitting accused Smt.Chandrakumari and Sanjay Kumar has convicted appellants Jangal @ Ramsharan and Rameshwar @ Ramesh as aforementioned. Charge sheet against juvenile offender Mahesh has been filed before the Juvenile Justice Board. 8. We have heard Mr.V.C.Ottalwar with Mr.Rajeev Shrivastava and Mr.Malay Shrivastava, counsel for appellant No.1, Mr.Alok Bakshi, counsel for appellant No.2 & MrJ.A.Lohani, Panel Lawyer for the Statelrespondent in Cr.A.No.1023/2004, Mrs.Kiran Jain, counsel for the applicant, Mr.Arvind Sinha, counsel for non-applicant No.1, MrJ A.Lohani, Panel Lawyer for the State/non applicant No.2 in Cr.R.No.59 1/2004, perused the judgment impugned and record of the trial Court. 9. Mr.V.C.Ottalwar, counsel for appellant No.1 Jangal @ Ramsharan in Cr.A.No. 1023/2004 vehemently argued that conviction is based on the evidence of interested witnesses Smt. Madhvi (PW-2) and her husband Kishanlal (PW -8) whose evidence does not inspire confidence and trustworthy, same are not safe to rely. As per evidence of Smt.Madhvi (PW-2), appellant Ramesh and juvenile offender Mahesh assaulted Gendlal by sword and appellant Jangal and Chandrakumari by stick, they also assaulted her by sword arid Mahesh has assaulted her by sword and Ramesh has assaulted her by stick, inter alia, as per evidence of Kishanlal (PW-8), Mahesh & Ramesh have assaulted Gendlal by sword and Jangal & Chandrakumari have assaulted Gendlal by stick, Jangal has also assaulted him by stick. At the time of incident they have not tried to rescue Gendlal, he was agonizing, the appellants were having sufficient opportunity to kill Gendlal but they have not killed Gendlal shows that they have not caused injuries with intend to cause his death. No injury of stick has been found over the body of deceased Gendlal. As per medical evidence of Dr.A.P.Sawant (PW-5) who was examined Gendlal vide EX.P/8 and has noticed seven incised wounds shows that only sword has been used at the time of causing injury and as per case of the prosecution, Mahesh was holding sword who was juvenile offender. No injury of stick has been found over the body of deceased Gendlal. As per medical evidence of Dr.A.P.Sawant (PW-5) who was examined Gendlal vide EX.P/8 and has noticed seven incised wounds shows that only sword has been used at the time of causing injury and as per case of the prosecution, Mahesh was holding sword who was juvenile offender. In the absence of any injury by stick, no inference can be drawn that except Mahesh, other persons have caused injury to Gendlal. In these circumstances, conviction of the appellants Jangal @ Ramsharan and Rameshwar @ Ramesh under Section 302 read with Section 34 of the I.P.C. is not sustainable under the law. Learned counsel further argued that other two accused namely Chandrakumari and Sanjay Kumar have been acquitted by the trial Court on the same set of evidence and has convicted the present appellants on the same set of evidence, therefore, the present appellants are also entitled for acquittal on the ground of parity. Learned counsel contended that the prosecution has not adduced any evidence against the present appellants relating to overact for sharing common intention. 10. Learned counsel placed reliance in the matter of Milkiyat Singh and others Vs. The State of Rajasthan in which the Supreme Court has held that in case of one part of prosecution story is found doubtful, it would not necessarily falsify the whole account, but in that case the rest of the story told by the alleged eye-witnesses must be examined carefully before it is relied on. Leaned counsel further placed reliance in the matters of Narain Vs. State of MP2, Hatti Singh Vs. State of Haryancf3, Nankun & others V'. State of MP (Now C.G.) in which the Supreme Court and this Court has held that in case some accused acquitted on the same set of evidence, then other accused cannot be convicted on the basis of same set of evidence. Learned counsel relied upon the matter of Nagaraja Vs. State of Karnataka in which the Supreme Court has held that only exhortation is not sufficient to infer the common intention or mere exhortation by one of the accused persons that they would not leave him (deceased) till he died, cannot be a ground to rope in all the accused persons. Leaned counsel placed reliance in the matter, of Virendra Singh Vs. Leaned counsel placed reliance in the matter, of Virendra Singh Vs. State of Madhya Pradesh in which the Supreme Court has held that common intention implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation, though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a pre-arranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. Learned counsel further placed reliance in the matter of MC. Ali & another Vs. State of Kerala7 in which the Supreme Court has held that if the prosecution case is not corroborated by independent witness, then the accused is entitled for acquittal. 11. Learned counsel for appellant No.2 has adopted the arguments advanced on behalf of counsel for appellant No.1 and argued that the prosecution has not collected evidence against •appellant No.2 to connect him in crime in question, therefore, he is entitled for acquittal. 12. Learned counsel for the applicant Kishan Lal in Cr.R.No.59112004 argued that the prosecution has adduced sufficient evidence to connect non applicant No.1 Chandra kumari in crime in question. Evidence adduced on behalf of the prosecution is sufficient for conviction of appellants Jangal and Rameshwar and also for non-applicant No.1 Chandrakumari, but the trial Court has illegally acquitted her. 13. Learned counsel for non-applicant No.1 Chandrakumari opposed the revision and argued that the prosecution has not collected evidence against Chandrakumari and the trial Court has rightly acquitted her. 14. On the other hand, learned Panel Lawyer opposed the appeal and argued that the prosecution has collected sufficient evidence against the appellants and after appreciating the evidence available on record the trial Court while acquitting other co-accused on the ground of insufficiency of evidence has convicted the appellants as aforementioned. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 16. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 16. In the present case, homicidal death as a result of fatal injuries' found over the body of deceased Gendlal and simple injury to Kishanlal have not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of Dr. A.P. Sawant (PW-5), injury report of Gendlal Ex.P/8, injury report of injured Kishanlal Ex.P/11 Dr.P.Akhtar (PW-11) and autopsy report Ex.P/17 Death of Gendlal was homicidal in nature and simple injury found over the body of Kishan Lal. 17. As regards the complicity of the appellants in crime in question and incriminating evidence against non-applicant Chandrakumari, the prosecution has placed reliance upon the evidence of Smt. Madhvi (PW-2), alleged injured eyewitness, Smt.Pushpa Devi (PW-3), alleged injured eyewitness, Kishanlal (PW-8), injured witness, Santosh Kumar (PW-12), eyewitness and Suresh (PW14). As per evidence of Kishanlal (PW-8), injured witness, at the time of incident his wife Smt.Madhvi (PW-2) was coming back to her house after taking water from tanker, accused Mahesh pushed her with ulterior motive, then his wife abused Mahesh, at that time he was standing near tanker, then scuffle took place between Madhvi and Mahesh, deceased Gendlal came to the spot and tried to intervene, he was trying to remove accused Mahesh from the spot, then Mahesh rushed to his house and after sometime he came along with present appellants. Jangal @ Ramsharan, Rameshwar @ Ramesh and accused Chandrakumari, Mahesh & Ramesh were holding sword and Jangal & Chandrakumari were holding stick. All the appellants assaulted Gendlal by sword and stick, after leaving bucket of water he rushed towards his brother Gendlal where appellant Jangal assaulted him by stick over his left hand, Gendlal was agonizing, the appellants thought that Gendlal died, then the appellants left the spot. They took Gendlal to Police Station, at the same time the appellants went to his house and again assaulted him and damaged the property of his shop. He lodged dehati nalishi vide Ex.P/l5. Police sent him and his brother Gendlal for medical treatment and during the course of treatment Gendlal died. Smt.Madhvi (PW-2), wife of Kishanlal (PW-8), has substantially corroborated the evidence of Kishanlal (PW-8). Smt.Pushpa Devi (PW-3) has also corroborated the evidence of Kishanlal (PW-8). He lodged dehati nalishi vide Ex.P/l5. Police sent him and his brother Gendlal for medical treatment and during the course of treatment Gendlal died. Smt.Madhvi (PW-2), wife of Kishanlal (PW-8), has substantially corroborated the evidence of Kishanlal (PW-8). Smt.Pushpa Devi (PW-3) has also corroborated the evidence of Kishanlal (PW-8). As per evidence of Santosh Kumar (PW12), he heard sound of quarrel, then he proceeded towards the spot where he saw injured body of Gendlal lying in the floor and appellant Ramesh & accused Mahesh were holding sword and appellant Jangal & his wife were holding stick, they were assaulting Gendlal. Suresh (PW-14) has also corroborated the evidence of Kishanlal (PW -8). 18. Defence has cross-examined Suresh (PW-14) in detail, in which he has denied the suggestion that Mahesh was not present on the spot. As per para 7, he has also tried to intervene. He has denied the suggestion that on account of help/assistance given by Gendlal to his father he is implicating the present appellants falsely in support of Gendlal. Defence has cross-examined Santosh Kumar (PW-I2) in detail. In his detailed cross-examination in para 7 he has specifically deposed that prior to incident he was not known 'Gendlal. He has also denied the suggestion that Gendlal was habitual offender. He has also denied the suggestion that in association with the complainant party he has harassed the accused party. Defence has cross-examined Kishanlal (PW8) in detail. In his detailed cross-examination he has categorically deposed that at the time of incident he was present near the place of incident. He has denied the suggestion of jealousy on account of shop and has also denied the suggestion relating to criminal antecedent of his brother Gendlal. He has also denied the suggestion of enmity between both the parties. As per para 11 of his cross examination, appellant Jangal is his neighbour. He has admitted in para 18 of his cross-examination that at the time of incident Sanjay was not present but at the time of incident in his shop Sanjay was present. He has admitted the presence of Suresh (PW -14) at the time of incident in his shop. In detailed cross-examination Smt.Madhvi (PW-2), she has categorically deposed that firstly she was pushed by accused Mahesh and thereafter incident took place and all the appellants assaulted Gendlal. Smt.Pushpa Devi (PW-3) has also deposed the same thing in her cross-examination. He has admitted the presence of Suresh (PW -14) at the time of incident in his shop. In detailed cross-examination Smt.Madhvi (PW-2), she has categorically deposed that firstly she was pushed by accused Mahesh and thereafter incident took place and all the appellants assaulted Gendlal. Smt.Pushpa Devi (PW-3) has also deposed the same thing in her cross-examination. There are some contradictions and omissions in the evidence of aforesaid witnesses. They are relative witnesses but their evidence cannot be discarded only on the ground of their relation, on the other hand, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. In case of inimical and relative witnesses, only minute scrutiny of their evidence is necessary to exclude the possibility of exaggeration and implication of an innocent person along with real culprit. 19. While dealing with the question of relative and interested witnesses, the Supreme Court in the matter of Dalip Singh Vs. State of Punjab8 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under: "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth." 20. As held by the Apex Court in the matter of Mohabbai and Ors. Vs. State of MP'9, relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads as under, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. State of MP'9, relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads as under, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person, Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible." 21. While dealing with the same question, the Supreme Court in the matter of Guli Chand and others Vs. State of Rajasthan 10 has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 22. While dealing with the same question, the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtratl held that in view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Para 48 of the said judgment reads as under : "48. Before discussing the evidence of the witnesses we night mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Been for the last time, are close relatives and friends of the deceased. Before discussing the evidence of the witnesses we night mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Been for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed m\1rderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 23. While dealing with the question of value of eyewitnesses whose one part of story is doubtful, the Supreme Court in the matter of Milkiyat Singh and others (supra) has held that if in a murder case part of the prosecution story is found doubtful, it would not necessarily falsify the whole account, but in that case the rest of the story told by the alleged eye-witnesses must be examined carefully before it is relied on. 24. In the present case, there are some omissions and contractions in the evidence and statements of the witnesses recorded under Section 161 of the Code, as held by the Supreme Court in the matter of Milkiyat Singh and others] (supra), careful examination of their evidence before it can be relied on IS necessary. 25. As held by the Supreme Court and by this Court in the matters of Narain (supra), Hatti Singh3 (supra) and Nankun & others4 (supra), the Court is required to make an attempt to separate truth from falsehood and where such separation is impossible, then in such case there cannot be any conviction. 26. 25. As held by the Supreme Court and by this Court in the matters of Narain (supra), Hatti Singh3 (supra) and Nankun & others4 (supra), the Court is required to make an attempt to separate truth from falsehood and where such separation is impossible, then in such case there cannot be any conviction. 26. White dealing with the question of reliability of the evidence of the person who has exaggerated and patiently given false statement up to some extent, the Supreme Court in the matter of Laxman and others Vs. State of Maharashtra has held that witnesses cannot be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrable incorrect or doubtful. Relevant portion reads as under: "Before we discuss the evidence further, we may observe that Professor Munsterberg in a book called "On the Witness Stand" (p.S1), "Law and the Modern Mind" (see: 1949 ed. P.106) gives instances of experiments conducted by enacting sudden unexpected preplanned episodes before persons who were then asked to write down, soon afterwards, what they had seen and heard. The astounding result was: "Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragic-comedy were completely eliminated from the memory of a number of witnesses". Hence, the Professor concluded: "We never know, or imagine". Witnesses can not, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted or acted upon. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus." 27. In the present case, there are some contradictions, omissions and exaggeration in the evidence of aforesaid eyewitnesses. It is sound commonsense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim: "falsus in uno falsus in omnibus." 27. In the present case, there are some contradictions, omissions and exaggeration in the evidence of aforesaid eyewitnesses. Defence has cross examined these witnesses at length but in their evidence, they have specifically and categorically deposed that incident took place in two parts, firstly, Smt.Madhvi (PW-2) was pushed by juvenile offender Mahesh, at that time some scuffle took place between Mahesh and Madhvi and then Gendlal came to intervene the incident and tried to remove Mahesh, thereafter Mahesh went to his house and after sometime while Kishan Lal (PW-8) was bringing water from two buckets all four accused persons came out, appellant Ramesh &juvenile offender Mahesh were holding sword and appellant Jangal & acquitted co-accused Chandrakumari were holding stick, appellant Ramesh & accused Mahesh assaulted Gendlal by sword and caused fatal injuries and appellant Jangal & accused Chandrakumari assaulted Gendlal by stick. Kishanlal (PW-8) has lodged F.I.R. as dehati nalishi vide EX.P/IS within three hours from the incident during the course of treatment at BSP Hospital Sector-9, Bhilai, in which he has mentioned the aforesaid fact. 28. Alleged omissions and contradictions are not substantive in nature, inter alia, they are trifle in nature. Trifle contradictions and omissions are not unnatural in the detailed evidence recorded in the Court and statements of the witnesses recorded under Section 161 of the Code by the Police, but only on the ground of contradictions, omissions and exaggeration, evidence of the witnesses cannot be discarded. There is consistency in the evidence of Smt.Madhvi (PW-2), Smt.Pushpa Devi (PW-3),;"Kishanlal (PW-8), Santosh Kumar (PW-12) and Suresh (PW-14) relating to the act attributed to each of the accused/appellants. Their evidences also find corroboration from autopsy report i.e. medical evidence showing multiple injuries caused by sharp edged weapon to Gendlal. 29. Evidence relating to injury caused to Smt.Madhvi (PW-2) and Smt.Pushpa Devi (PW-3) has been disbelieved by the trial Court on the ground of inconsistency in the statements and medical evidence. The aforesaid witnesses have not deposed anything against accused Sanjay Kumar and on the ground of insufficient evidence/no evidence the trial Court has acquitted accused Sanjay Kumar. As per evidence of aforesaid eyewitnesses, appel1ant Ramesh & accused Mahesh have caused injuries to Gendlal by sword and other accused have caused injuries by stick. The aforesaid witnesses have not deposed anything against accused Sanjay Kumar and on the ground of insufficient evidence/no evidence the trial Court has acquitted accused Sanjay Kumar. As per evidence of aforesaid eyewitnesses, appel1ant Ramesh & accused Mahesh have caused injuries to Gendlal by sword and other accused have caused injuries by stick. As many as nine incised wounds have been noticed by the doctor, which are sufficient length and depth. 30. In this case, al1eged sword has been recovered from co-accused Chandrakumari vide Ex.P/7 which was not stained with blood. Sword has not been recovered at the instance of present appel1ant Ramesh. Inculpatory/confessional statement of the accused to the Police is not admissible in evidence in accordance with Sections 24 and 25 of the Evidence Act. 31. In the absence of any other evidence and only on the basis of disclosure statement of Chandrakumari relating to sword vide Ex.P/3, no inference can be drawn that appel1ant Ramesh has used the sword which has been recovered from the possession of his mother i.e. accused Chandra kumari. Virtual1y in the present case, the prosecution has not proved recovery/possession of sword at the instance of appel1ant Ramesh or possession of sword by appellant Ramesh, but only in the absence of such evidence, evidence of other eyewitnesses cannot be discarded. Even otherwise, in the absence of any proof/ nexus between articles seized and articles used, no definite presumption can be drawn that the accused have used the aforesaid weapons at the time of offence. 32. In the present case, the prosecution has not adduced such type and incriminating evidence to connect the appel1ants in crime in question with the help of recovery of articles. Virtually in the present case, recovery of articles at the instance of the appel1ants/accused persons are no substantive piece of evidence in the absence of some proof of similar blood group, in the article and dead body of the deceased. 33. Conviction of the appellants is not based only on the ground of recovery of articles at the instance of the appel1ants. The trial C0urt has convicted the appel1ants on the basis of evidence of eyewitnesses, although the Sessions Judge, Durg has arrived at a finding that appel1ant Ramesh has not caused injury by sword and only on the ground that al1eged sword recovered at the instance of Chandrakumari. The trial C0urt has convicted the appel1ants on the basis of evidence of eyewitnesses, although the Sessions Judge, Durg has arrived at a finding that appel1ant Ramesh has not caused injury by sword and only on the ground that al1eged sword recovered at the instance of Chandrakumari. This evidence does not find support from the evidence of eye-witnesses, inter alia, same is contrary to the evidence of eye-witnesses who have categorical1y and specificalIy deposed that appellant Ramesh & co-accused Mahesh have caused fatal injuries to deceased Gendlal by sword which is also corroborated by medical evidence. There is no inconsistency between the aforesaid ocular and medical evidence. 34. This is a criminal appeal against the finding recorded by the Sessions Judge and it is open to the appellate Court to re-appreciate the finding on the basis of the evidence and to correct the finding of the Court below while exercising the appel1ate jurisdiction in terms of Section 386 of the Code. While dealing with the question of re-appreciation and alteration of finding of the trial Court, the Supreme Court in the matter of Sham Sunder Vs. Puran and another13 has held that the High Court, exercising power under Section 386 of the Code, in appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature. Para 2 of the said judgment reads as under, "2. The High Court, exercising power under Section 386 of the Code, in appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature and extent of the sentence but not so as to enhance the same. The powers of the High Court in dealing with the evidence are as wide as that of the trial Court. As the final court of facts, the High Court has also duty to examine the evidence and arrive at the own conclusion on the entire material on record as to the guilt or otherwise of the appellants before it." 35. While dealing with the same question, the Supreme Court in the matter of Narinder Singh and another Vs. State of Punjab14 has held that fresh appreciation of the entire evidence is permissible under Section 386 of the Code. While dealing with the same question, the Supreme Court in the matter of Narinder Singh and another Vs. State of Punjab14 has held that fresh appreciation of the entire evidence is permissible under Section 386 of the Code. The Supreme Court has further held that the High Court was right in overturning the judgment of acquittal of the Court of Session. Perversity is writ large on the face of the judgment of the trial Court. Its appreciation of evidence is wholly inappropriate and it has acted with material irregularity. It has taken into consideration inconsequential circumstances to record acquittal of the appellants. 36. Evidence of Smt.Madhvi (PW-2), Smt.Pushpa Devi (PW-3), Kishanlal (PW-8), Santosh Kumar (PW-12) and Suresh (PW-14) are sufficient for drawing inference that appellant Ramesh & juvenile offender Mahesh have caused njuries to Gendlal by sword resulting into his death. This is a fit case for re-appreciatlOn of evidence relating to injuries caused by appellant Ramesh and by using of sword and evidence of Smt.Madhvi (PW-2), Smt.Pushpa Devi (PW-3), Kishanlal (PW-8), Santosh Kumar (PW-12) and Suresh (PW-14) well corroborated by medical evidence and promptly lodged dehati nalishi Ex.PI15 are sufficient for drawing inference that the present appellant Ramesh & juvenile offender Mahesh have caused fatal injuries to Gendlal by sword resulting into his death. 37. As regards the question of injuries caused by appellant Jangal and acquitted co-accused Chandrakumari, as per evidence of aforesaid witnesses, they were holding stick. No injury of stick has been noticed by the doctors over the body of deceased Gendlal, therefore, it is difficult to hold that appellant Jangal and co-accused Chandrakumari have not caused any injury to Gendlal by stick, but evidence of aforesaid witnesses are sufficient for drawing inference that appellant Jangal has caused injury to Kishanlal by stick and caused simple injury to him. As per finding of the trial Court, acquitted accused Chandrakumari has not caused any injury to any of the complainant or deceased Gendlal. 38. After appreciating the evidence adduced on behalf of the prosecution, the trial Court has acquitted accused Chandrakumari on the ground of insufficiency of evidence. As held by the Supreme Court in the matter of Narain (supra), while acquitting co-accused on the ground of insufficient evidence other accused can be convicted against whom the prosecution has collected sufficient evidence. While acquitting Chandrakumari and Sanjay Kumar the trial Court has not committed any illegality. 39. As held by the Supreme Court in the matter of Narain (supra), while acquitting co-accused on the ground of insufficient evidence other accused can be convicted against whom the prosecution has collected sufficient evidence. While acquitting Chandrakumari and Sanjay Kumar the trial Court has not committed any illegality. 39. Evidence of Smt.Madhvi (PW-2), Smt.Pushpa Devi (PW-3), Kishanlal (PW -8), Santosh Kumar (PW -12) and Suresh (PW -14) are sufficient for drawing inference that appellant Ramesh along with juvenile offender Mahesh have caused homicidal death of deceased Gendlal and appellant Jangal has caused simple injury to Kishanlal. 40. As regards the question of intention and offence committed in sharing common intention, mere presence on the spot along with other co-accused without any overact or pre-meeting of mind conviction of the co-accused with the aid of Section 34 of the I.P.C is not legally sustainable. In order to convict the accused with the add of Section 34 of the I.P.C, the prosecution is required to prove the fact that there was pre-meeting of mind and overact of the appellants during the course of commission of offence, although as held by the Supreme Court in the matter of Nagaraja (supra), common intention can be developed suddenly on the spot. 41. In the present case, the prosecution has not proved the fa(:t that appellant Jangal has caused injury by stick to deceased Gendlal but he was holding stick. As per evidence of aforesaid eye-witnesses, firstly they were assaulting Gendlal and when Kishanlal (PW -8) came to intervene and rescue his brother Gendlal, then appellant Jangal caused single blow to him by stick. This shows that at the time of commission of offence although appellant Jangal was holding stick but he has not used the same for causing injury to Gendlal, having sufficient time and opportunity to cause such injury to Gendlal by stick, but when Kishanal came, then he caused single blow to Kishanlal, he came along with Mahesh on the spot. Appellant Jangal @ Ramsharan is father of co-accused Rameshwar @ Ramesh and juvenile offender Mahesh aged about 15 years. At the time of occurrence of such nature, accompanying his sons by father to avoid any contingency is not unnatural and accompanying the children by father in case of non-agreement with the commission of alleged act by the children is not also unnatural. At the time of occurrence of such nature, accompanying his sons by father to avoid any contingency is not unnatural and accompanying the children by father in case of non-agreement with the commission of alleged act by the children is not also unnatural. Nothing has been deposed by any of the witnesses relating to pre-meeting of mind or any overact in commission of homicidal death of Gendlal by appellant Jangal @ Ramsharan. In the absence of such evidence and in the absence of overact relating to causing of injury to Gendlal, it is difficult to hold that appellant Jangal @ Ramsharan has committed the aforesaid offence in sharing common intention with other co-accused persons, but evidence adduced on behalf of the prosecution is sufficient for drawing inference that appellant Jangal @ Ramsharan has caused simple injury to Kishanlal when he came to rescue and save his brother. Injuries found over the body of deceased Gendlal and weapon used are sufficient for drawing inference that appellant Ramesh and other juvenile offender Mahesh have caused homicidal death of Gendlal with intent to cause his death. 42. Conviction of appellant Rameshwar @ Ramesh under Section 302/ 34 of the I.P.C. is sustainable under the law along with his conviction under Section 427 of the l.P.C. Conviction of appellant Jangal @ Ramsharan under Sections 323 and 427 of the I.P.C. is also sustainable under the law but conviction & sentence of appellant Jangal @ Ramsharan under Section 302/34 of the I.P.C. is not well founded and sustainable under the law in the absence of any evidence of pre-meeting of mind or overact. Evidence adduced on behalf of the prosecution is not sufficient for conviction of accused Chandrakumari for commission of any offence. 43. While convicting and sentencing appellant Jangal @ Ramsharan the trial Court has not considered the aforesaid material and circumstances and thereby committed illegality. 44. For the foregoing reasons, Criminal Revision No.591/2004 filed on behalf of applicant Kishanlal is liable to be dismissed and it is hereby dismissed and Criminal Appeal No.1 023 of2004 filed on behalf of the appellants is partly allowed. Conviction & sentence of appellant Rameshwar @ Ramesh under Sections 302 read with Section 34 and 427 of the I.P.c. are hereby maintained and conviction & sentence of appellant Jangal @ Ramsharan under Sections 427 and 323 of the I.P.C. are also hereby maintained. Conviction & sentence of appellant Rameshwar @ Ramesh under Sections 302 read with Section 34 and 427 of the I.P.c. are hereby maintained and conviction & sentence of appellant Jangal @ Ramsharan under Sections 427 and 323 of the I.P.C. are also hereby maintained. However, conviction & sentence of appellant Jangal @ Ramsharan under Section 302 read with Section 34 of the I.P.C. are hereby set aside. Appellant Jangal @ Ramsharan was in custody since 15.3.2003 till 17.4.2006 and has suffered the sentence imposed upon him for the offence punishable under Sections 323 and 427 of the I.P.C. He is on bail, he need not surrender before the trial Court. Appeal Partly Allowed & Revision Dismissed.